Citation Nr: 1308628
Decision Date: 03/14/13 Archive Date: 03/25/13
DOCKET NO. 11-03 801 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Boise, Idaho
THE ISSUE
Entitlement to an effective date earlier than December 10, 2009, for the grant of a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, to include extraschedular consideration for TDIU.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Mary C. Suffoletta, Counsel
INTRODUCTION
The Veteran served on active duty from December 1983 to May 1986.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions in November 2009 and May 2010. In the 2009 decision, the RO denied TDIU, and the Veteran filed a timely notice of disagreement. Subsequently, in the 2010 decision, the RO service-connected an additional disability, and granted TDIU, assigning an effective date of December 10, 2009. The Veteran submitted an additional notice of disagreement with the effective date. As the substance of both of the Veteran's notices of disagreement is whether an extraschedular TDIU is warranted prior to the grant of TDIU in December, the Board finds that the single statement of the case of record adequately addresses that issue, and the issue is properly before the Board. As such, the issue has been framed as above to include the extraschedular issue.
In May 2012, the Veteran testified during a hearing before the undersigned at the RO. A transcript of that hearing has been associated with the file.
Lastly, in addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of her Virtual VA file.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran and her representative when further action is required.
REMAND
Records in the claims folder show that the Veteran's claim for Social Security benefits based upon disability was awarded in April 2005. The Court has held that when VA is put on notice of the existence of relevant SSA records, VA must seek to obtain those records before proceeding with the appeal. Lind v. Principi, 3 Vet. App. 493, 494 (1992). As the Veteran's award of SSA benefits was due to her service-connected back disability, which she contends is the underlying disability in her TDIU claim, the evidence that was used by SSA to award disability benefits and any recent evaluations is found to be relevant, and must be obtained. Although an August 2009 request for such records is in the file, no response is noted.
With respect to the merits of the case, in her informal claim for TDIU benefits in July 2009, the Veteran argued that she was entitled to a TDIU on an extraschedular basis, and cited to 38 C.F.R. § 3.321. VA received the Veteran's formal claim for TDIU benefits on August 11, 2009.
In November 2009, the RO denied the Veteran's claim for a TDIU, to include on an extraschedular basis. At that time, service connection was in effect for a lumbar spine disability, rated at 40 percent, and a tender surgical scar, rated at 10 percent. As these disabilities stemmed from a common etiology, they are combined for the purposes of applying 38 C.F.R. § 4.16. Thus, at that time, the Veteran had one service-connected disability rated at 50 percent.
Entitlement to a TDIU requires the presence of an impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to her age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19.
The governing regulations provide that, to qualify for a TDIU, if there is only one service-connected disability, it must be rated at 60 percent or more. 38 C.F.R.
§ 4.16(a). If the evidence demonstrates that the Veteran is unemployable by reason of her service-connected disabilities, but fails to meet these percentage standards, the claim shall be submitted to the Director of Compensation and Pension Service for extra-schedular consideration. 38 C.F.R. § 4.16(b).
In December 2009, the Veteran submitted a notice of disagreement with the November 2009 decision denying a TDIU. She again requested consideration on an extraschedular basis pursuant to 38 C.F.R. § 3.321. At the same time, she requested service connection for additional disability due to the service-connected back disability.
In May 2010, the RO granted service connection for organic affective disorder on a secondary basis, and assigned a 50 percent rating, effective the date of her claim, in December 2009. This grant of service connection increased the Veteran's combined rating to 70 percent from December 2009 forward. As the schedular requirements for TDIU were met, the RO granted TDIU, also from December 2009 forward.
The Veteran again submitted a notice of disagreement, arguing that the TDIU should be effective in July 2009, the date of her original claim for TDIU.
At the outset, the Board notes that although the Veteran has requested application of 38 C.F.R. § 3.321 in conjunction with her claim for extraschedular consideration, that regulation is not applicable in this case. Specifically, section 3.321 applies to extraschedular ratings of disabilities where the schedule itself for that disability is found to be inadequate. For example, if the Veteran believed that her rating for her back disability warranted extraschedular consideration, section 3.321 would be for application. However, she has not disagreed with her schedular disability ratings for her back, scar, and organic affective disorder. Rather, she has disagreed with the failure to assign a total disability rating based on unemployability on an extraschedular basis. Extraschedular TDIU assignment is governed by 38 C.F.R. § 4.16(b). As noted above, in cases where unemployability is shown, but the schedular percentage requirements are not met, the claim must be submitted to the Director of Compensation Service for extra-schedular consideration. Here, unemployability is shown by the July 2009 doctor's statement. For the period from July to December 2009, however, the schedular requirements were not met. Therefore, the case should have been submitted to the Director of Compensation Service for consideration on an extraschedular basis under 38 C.F.R. § 4.16(b).
While the further delay of this case is regrettable, due process considerations require such action. Accordingly, the case is REMANDED for the following action:
1. Undertake appropriate action to obtain copies, from the Social Security Administration (SSA), of the determination which awarded disability benefits to the Veteran and the medical records used as a basis of the award, and any recent evaluations.
2. After the above development is completed, to the extent possible, refer the Veteran's TDIU claim to the Director of Compensation Service for consideration of TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). Specifically at issue is the period from July 2009 to December 2009, when the Veteran's combined disability rating for two disabilities stemming from one etiology was 50 percent. Attention is invited to the credible medical statement submitted in July 2009, evidencing unemployability due to the service-connected back disability.
3. After ensuring that the requested actions are completed, re-adjudicate the claim on appeal. If the benefit sought is not fully granted, furnish a supplemental statement of the case (SSOC) to the Veteran and her representative and then return the claims file to the Board, if otherwise in order.
The Veteran and her representative have the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
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BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).